COT3 Unfair Term?

[GeoffC]

Hi All,

I'm about to sign a COT3 for early settlement using ACAS.

My previous employer has included the below term:

Both parties agree to keep the circumstances surrounding and leading up to the termination of the Claimant’s employment and the fact and contents of this Agreement strictly confidential and not to disclose, communicate or otherwise make public the same to anyone save:

a) their professional advisers; and
b) as may be required by law; and
c) as may or required by the relevant tax and/or regulatory authorities; and
d) in the case of the Respondent in order to administer its obligations under this agreement; and
e) in the case of the Claimant, her immediate family. The Claimant agrees to use reasonable endeavours to procure that the members of her immediate family keep the prohibited information strictly confidential.
f) The Claimant is explicitly forbidden from discussing any aspect of the settlement, or associated claims covered by it, with current or former employees of the Respondent.

I understand one of the points of an early settlement is to silence me and I'm not about to shout it from the rooftops although I feel the term is unfair and I would have to constantly watch what I say to people when I discuss my career end.
Unfair points:
There is no time limit attach to this condition
"reasonable endeavours" is IMO a loose term especially in regards to stopping other people talking about it

I may have previously discussed with people, could they say I breached the COT3 to avoid paying out?

My question really is, Is this a standard term or are they pushing it?

Thanks!

[dslippy]

It seems very reasonable. Whether it is standard or not I am unable to say.

[des8]

Agree it is fairly standard, but you could argue it is too onerous.
" Immediate family" usually is understood to consist of parents, siblings, spouse and children, but that is too restrictive in today's society


A few years ago I helped someone with a similar concern.
I don't know your personal circumstances, but you should IMO try and have that clause expanded to nominate the classes of people you wish to be excepted (eg include "partner" if you are not married)


Presume the settlement agreement also includes an agreed reference

[atticus]

I have often discussed this with clients. When asked about the end of the career you can say that terms were agreed but that you cannot say more. Most people will understand.

Do not presume that the agreement includes a reference. Check, and if it does not provide for one, and you need one, insist.

[GeoffC]

Thanks all for the replies.
I am happy with the reference clause included in the COT3.

[GeoffC]

It seems very reasonable. Whether it is standard or not I am unable to say.

I was comparing this to something like a non-compete, there is usually a time limit on such things, I would have thought it was unfair to stop me talking about something forever.

It does seem standard though.

Thanks

[R0b]

Just because its standard doesn't mean you have to accept it. These kinds of provisions are always up for negotiation so you can request amendments, but of course expect them to push back. On the one hand, the employer wants to protect their reputation and any further damage or discontent with other employees especially if they have been treated similarly to yourself. On the other hand, why should you be gagged from talking about your issues that you have experienced with this employer? By the same token, if this provision is removed, there is the potential for other staff members to become aware of your situation and do you want them to know that?

I'm assuming the settlement agreement will likely be heavily in favour of the employer with lots of protections for them but not for you. I would suggest that before any settlement is signed, you ask the employer to agree to pay for you to obtain legal advice on the current terms set out in the settlement agreement.

Speaking from a civil dispute point of view, personally I'm not a fan of these clauses and tend to refuse to include them especially when the sums involved are relatively low and usually its the employer's unreasonable conduct that has meant it got to this stage so why should they benefit from not having bad publicity or other negativity? Obviously other factors are at play such as the merits of your case and the sums involved that your employer is proposing - another reason to get legal advice as the amount could be very low compared to what you could get if successful in a tribunal. If the case is strong, you may want to risk your chances of going to a tribunal with the employer ultimately incurring additional expense but if your case is weak, you could run the risk yourself of losing out.

Unless there are good reasons not to and bearing in mind what I have said above, the only thing I would agree to is the confidentiality of the settlement amount, though ideally, I would push for the deletion of it all if I had confidence in my claim.

[atticus]

In the past I have sometimes said if you want confidentiality you will have to pay more for it. Sometimes that works.

[R0b]

In the past I have sometimes said if you want confidentiality you will have to pay more for it. Sometimes that works.

Good point, and another option that is available. I have had limited success as the confidentiality clause ends up going since they don't want to pay more!